1. This is a Reference by the Sessions Judge of Burdwan, recommending that the order of conviction and sentence passed on one Darbarilal Shaw for having committed an offence punishable under sec. 188 of the Indian Penal Code be set aside on the grounds stated in the Letter of Reference. The facts briefly are as follows:
2. On the 12th January, 1948, a report, was submitted by the Khasmahal Tahsilder that Darbarilal Shaw was making additions and alterations in an old building in such a way as to encroach upon the Khasmahal lands on the Grand Trunk Road to the extent of 6 inches in breadth.
3. Upon this report being made to the Sub-Divisional Magistrate, he sent it, for disposal to another Magistrate Sri J.K Ghose who drew up proceedings according to the provisions of sec. 144 of the Code of Criminal Procedure. On the 9th February, 1948, another report was submitted by the Khasmahal Tahsildar that the order under sec. 144 of the Code of Criminal Procedure was being disobeyed. Upon this a complaint was made by the Magistrate Sri J.K Ghose charging Darbarilal Shaw and another with having committed an offence punishable under sec. 188 of the Indian Penal Code. The matter was heard by Sri S.C Banerjee, Magistrate, 1st Classs, Asansol. He acquitted the other accused but found Darbarilal Shaw guilty of the offence and fined him Rs. 100, in default he was sentenced to simple imprisonment for 7 days.
4. The learned Judge in referring this matter to this Court states that the conviction is bad inasmuch as Sri J.K Ghose who passed the order under sec. 144 of the Code of Criminal Procedure was not specially empowered to pass such an order and therefore he acted without jurisdiction. The order being without jurisdiction, the conviction for disobedience of the order, according to the learned Judge, cannot stand. The second ground mentioned in the letter of the learned Judge is that the service of the order passed under sec. 144 of the Code of Criminal Procedure was not regular, inasmuch as the duplicate copy of the order was not left with the accused. Lastly, he says that the order under sec. 144 of the Code of Criminal Procedure should not have been passed as the evidence given was not sufficient to warrant such an order.
5. In my opinion, none of these three grounds would justify this Court in setting aside the conviction of the accused.
6. As regards the first ground I find that it was never taken in the petition before the learned Judge. 12 or 13 grounds were taken and the learned Judge sent those grounds to the learned Magistrate for his explanation. The learned Magistrate gave a full explanation with respect to all the grounds which were taken. He was not asked, however, to state whether the Magistrate had the power to pass the order under sec. 144 of the Code of Criminal Procedure and very naturally he did not state anything with regard to this matter. The learned Judge should not have come to the conclusion that the Magistrate had no such power without first asking the Magistrate to explain. To make a Reference on a ground which the Magistrate had not had the opportunity to meet is scarcely fair on the Magistrate. There is nothing to show that the Magistrate acted without jurisdiction. A Magistrate of the First Class may be invested with powers to pass orders under sec. 144 of the Code of Criminal Procedure. There is nothing to show that the Magistrate was not empowered to do this. Again a Magistrate, acting as a Sub-Divisional Magistrate, has, by virtue of his position as Sub-Divisional Magistrate, power to entertain proceedings under sec. 144 of the Code of Criminal Procedure. From the papers sent to this Court it seems that the Magistrate Sri J.K Ghose was acting as Sub-Divisional Magistrate when he made this order. In the judgment passed by the learned Magistrate trying the case under sec. 188 of the Indian Penal Code there is a clear statement that Sri J.K Ghose was working on the file of the Sub-Divisional Magistrate when he drew up proceedings under sec. 144 of the Code of Criminal Procedure. In the question put by the learned Magistrate to the accused when he was examined under sec. 342 of the Code of Criminal Procedure, it was stated that Sri J.K Ghose had issued the order under sec. 144 of the Code of Criminal Procedure as the Sub-Divisional Magistrate. In the face of all these materials and in the absence of any ground taken to the effect that Sri J.K Ghose was not empowered to entertain proceedings under sec. 144 of the Code of Criminal Procedure, I must hold that he had jurisdiction to do so, as he was acting as the Sub-Divisional Magistrate. The learned Judge is, therefore, quite wrong in coming to the conclusion that the Magistrate had no jurisdiction.
7. The second ground taken by the learned Judge is equally untenable. It has been established that the prohibitory order under sec. 144 of the Code of Criminal Procedure was served personally on the accused. A duplicate copy, however, was not left. The learned Judge seems to think that failure to do so amounts to a breach which is so serious that it goes to the root of the matter. In this he is entirely wrong. The provisions of sec. 134 of the Code of Criminal Procedure give directions regarding the mode of service, but if there is a slight irregularity in the service, it does not follow that the whole proceeding would be void. If it is established that the matter was brought to the notice of the accused, then mere irregularities in the method of service would have no effect on the proceedings under sec. 188 of the Indian Penal Code. It has been established here that the accused had actual knowledge of the order by reason of the fact that he acknowledged service of the order on him. This matter is concluded by authority. I would draw the learned Judge's attention to the case of Parbutty Charan Aich v. Queen-Empress(1) where this very point has been decided.
8. The last point taken by the learned Judge relates to the question whether the order passed under sec. 144 of the Code of Criminal Procedure was justified or not. The order was there and it was not set aside. It is not open to the Court trying an accused person for disobedience of such an order to decide whether he would have passed such an order in the circumstances of the case. He has to take the order as a good and valid order unless it is shown that the order was a nullity by reason of the fact that the Magistrate had no jurisdiction, or by reason of some other similar circumstances. He is not to super-impose his view on the propriety of the order. The learned Judge was, therefore, wrong in holding that the Magistrate should have acquitted the accused on the ground that the order passed under sec. 144 of the Code of Criminal Procedure was not a proper order.
9. I would have rejected this Reference were it not for the fact that there is a ground on which the accused should be acquitted. The learned Judge has not noticed this ground but that is no reason why this Court should not give effect to it. Sec. 188 of the Indian Penal Code lays down that a person who disobeys an order under sec. 144 of the Code of Criminal Procedure is guilty of an offence punishable under that section, only if such disobedience has or tends to have the effect mentioned in the latter part of the section. It is quite clear from sec. 188 of the Indian Penal Code that mere disobedience of an order under sec. 144 of the Code of Criminal Procedure is not punishable under that section. The disobedience of the order must cause or tend to cause danger to life, health or safety, or cause or tend to cause obstruction, annoyance or injury or risk of obstruction, annoyance or injury to any person lawfully employed. If this is the result of the disobedience, then the person guilty of disobedience would be liable to punishment. If the disobedience causes or tends to cause danger to human life, health or safety, or causes or tends to cause a riot or an affray, the punishment is more severe. It is obvious, therefore, that before a person can be punished under sec. 188 of the Indian Penal Code his disobedience of the order passed by the Magistrate must have or tend to have one or other of the results mentioned in the section. Now in this case it is not alleged that the disobedience of the accused caused or tended to cause obstruction, annoyance or injury, or risk of obstruction, annoyance or injury to any person lawfully employed. I stress the phrase “any persons lawfully employed.” No one has come forward to state that the disobedience has had this effect and it cannot be said that the irresistible conclusion from the fact of this disobedience is that it would have the effect of causing or tending to cause obstruction, annoyance or injury or risk of obstruction, annoyance or injury, to any person lawfully employed. As a matter of fact the accused was not asked any question regarding this matter. In the complaint filed it was stated that the violation caused or tended to cause annoyance or obstruction to the employees of the W and B department and injury to Government and that the violation also tended to cause danger to human safety. It is quite clear that the allegations in the petition of complaint are not based on facts. There is no evidence that there was any danger to human safety. No one from the W.B department, whatever that department may be, has come and said that he was annoyed by the obstruction. The learned Advocate opposing this Reference suggested that disobedience of the order passed under sec. 144 of the Code of Criminal Procedure must have annoyed the Khasmahal officers who have obtained the order and that, therefore, this ingredient of the section is established. I would say with great respect that it is impossible to entertain such a contention. One may just as well contend that the disobedience of the order passed under sec. 144 of the Code of Criminal Procedure annoyed the Magistrate passing the order and, therefore, the accused had committed an offence punishable under sec. 188 of the Indian Penal Code. It would be ridiculous to suggest this. What the section clearly means is this, the act done in disobedience of the order must be of such a nature that it caused or tended to cause annoyance and obstruction to the person lawfully employed. Here the act of constructing the building would not cause any annoyance to these officers, as their rights were not infringed at all. The learned Magistrate in his judgment has not relied on these allegations in the complaint. He states that the disobedience tended to cause injury to the Government and, therefore, it fell within the mischief of sec. 188 of the Indian Penal Code. What he means by injury to the Government I do not understand. I would point out in this connection that the injury must be to any person lawfully employed. Now the Government is not a person and, therefore, it cannot be said that the ingredients of sec. 188 of the Indian Penal Code have been established.
10. I hold, therefore, that the order of conviction is bad and I set aside the conviction and the sentence passed on the accused and direct that the fine, if paid, shall be refunded, and that the accused, if in custody, shall be set at liberty forthwith.
11. The Reference is accepted but not for the reasons stated by the learned Judge in his Letter of Reference.
N.D.R